Employers Should Brace For New Disability Exposures As ADA Amendments Act of 2008 Awaits President's Signature

Cynthia Stamer September 22, 2008 — 1,523 views

U.S. businesses employing 15 or more employees should brace themselves to face new challenges in defending themselves against employment disability claims. The ADA Amendments Act of 2008 (the "Act") awaiting signature by President Bush will make it harder to defend disabilities claims of certain employees under the Americans With Disabilities Act of 1990 (the "ADA"). In light of these impending changes, employers covered by the ADA and/or the Rehabilitation Act of 1973 should review and strengthen their existing hiring and other employment practices and documentation to strengthen their defensibility in the face of these new challenges.

As passed by the Senate on September 11, 2008 and the House of Representatives on September 17, 2008, businesses can expect to face heightened challenges in defending against disability discriminations claims under the ADA.

The Act specifically seeks to overrule certain judicial precedent interpreting the original provisions of the ADA, which had limited the scope the ADA in a manner generally favorable to employers. In particularly, the Act as passed by Congress will make it easier for certain employees recover in disability discrimination actions under the ADA by among other things:

Prohibiting employment discrimination against a qualified individual on the basis of disability as compared to the current law prohibition of employment discrimination against a qualified individual with a disability because of the disability; Prohibiting the use of qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be related to the position and is consistent with business necessity;Redefining the term "disability," by redefining "major life activities" and "being regarded as having such an impairment" in a manner that will make it easier for some employees to qualify as disabled under the ADA;Imposing rules of construction regarding the definition of "disability," including that: (1) such term shall be construed in favor of broad coverage of individuals under the Act; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; (3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (4) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures; andMaking certain other conforming changes to the Rehabilitation Act of 1973 and the ADA.

In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA. According to the statement of Congressional purpose set forth in the Act states, Congress passed the Act to:

Reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;Reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;Reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms `substantially' and `major' in the definition of disability under the ADA `need to be interpreted strictly to create a demanding standard for qualifying as disabled,' and that to be substantially limited in performing a major life activity under the ADA `an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives';Reject the standard a plaintiff to establish his condition `substantially limits' a major life activity adopted by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), and applied by lower courts in numerous decisions, as an inappropriately high level of limitation necessary to obtain coverage under the ADA; andConvey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis; and Prompt the Equal Employment Opportunity Commission (EEOC) to revise its regulations defining the terms `substantially limits' as `significantly restricted' consistent with the amendments made by the Act.

The precise amendments to the ADA enacted by the Act coupled with its clear directive to the EEOC to revise its regulations means businesses can expect to face more disability claims from a broader range of employees and to possess fewer legal shields to defend themselves against these claims. Violations of the ADA can expose employers to substantial damages. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits. Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys' fees, and up to $300,000 of exemplary damages (depending on the size of the employer).

If you have any questions or need help reviewing and updating your businesses employment practices in response to these impending changes, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact Cynthia Marcotte Stamer at 972.419.7188.

About Ms. Stamer

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. When working with clients, Ms. Stamer combines a client-oriented approach with an extensive practical and technical knowledge of human resources, insurance, employee benefits, health care, privacy & security, corporate compliance and other legal matters to assist clients to formulate and administer pragmatic operational and risk management strategies and effective internal controls taking into account the financial, operational, political, legal and other realities confronting the client.

Effective management of internal and external human resources and services providers is at the heart of any effective management or compliance strategy. Meanwhile, employment and employee benefit costs and liabilities are leading cost and liability drivers for all businesses and business leaders. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce domestically and internationally. As a core part of her practice, Ms. Stamer continuously works with businesses and business leaders to manage human resources and operational risks and liabilities though appropriate human resources, employee benefit, worker's compensation, insurance, outsourcing and risk management strategies domestically and internationally. Ms. Stamer regularly advises and represents public and private businesses, boards and other business leaders, the design, implementation, administration and defense of workforce management, compliance, corporate ethics and internal controls, employee benefits, and other human resources and risk management practices, policies and strategies. As part of this practice, Ms. Stamer has worked extensively with businesses domestically and internationally on process and cultural reengineering, outsourcing, workforce restructuring, reductions in force, and other human resources, employee benefits, services and enforcement, business catastrophes and other significant workforce events. Ms. Stamer also frequently helps businesses manage employment and employee benefit exposures and compliance concerns arising out of workforce reductions, job restructuring, outsourcing, corporate mergers, acquisitions, sales, bankruptcies, and other significant business and workforce changes. She has extensive experience helping employers design, document, implement, and defend individual and mass employment transition, termination and layoff selection procedures and decisions to reduce liability under employment discrimination, whistleblower, workers' compensation, employee benefit and other applicable laws. Ms. Stamer's experience includes extensive work advising employers about the use, documentation, implementation, and defense of employment termination, promotion and review practices, voluntary and involuntary severance pay arrangements, early retirement windows and other incentive retirement arrangements, settlement agreements, ADEA and other waivers, and other employment and employee benefit risk-management strategies; amendment and termination of employee benefit and employment policies; termination, amendment, vesting, distribution, partial termination, tax-qualification, withholding, and other compliance obligations with regard to employee benefit plans; and compliance obligations under COBRA, WARN, discrimination, and other applicable laws. She also advises and represents investors, creditors and creditor committees, debtors, bankruptcy trustees, employee benefit plans and fiduciaries and others in connection with the administration, restructuring and termination of human resources and other services relationships; the administration, amendment or termination or employee benefit, compensation, and fringe benefit programs and practices, outsourcing, litigation or other investigation or enforcement actions by employees, contractors and plan participants, as well as the IRS, Department of Labor or other regulators arising out of staffing or insurance matters and other related concerns.

Recognized in the International Who's Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer is a highly regarded legal advisor and consultant, author and speaker, who regularly conducts management and other training on a wide range of employee benefit, human resources and internal controls, and other related risk management matters. Ms Stamer is the author of 100s of publications on a host of human resources and related issues, including "Managing The People & Politics In Times of Catastrophe or Change," "Mergers, Acquisitions, & Integration Solving The People Puzzle," "When Your Employee's Private Life Becomes Your Business," "Real World Compliance Strategies for Improving Operations and Managing Risk," "Bankruptcy and Employee Benefit Issues," "The Medical Coverage Continuation Requirements of The Consolidated Omnibus Budget Reconciliation Act of 1985 As Interpreted Under The Final Treasury Regs," "Company Executives, Other Business Partners Face ERISA Liability Risks If Bankrupt or Distress Company Mismanages Employee Benefit Plan Responsibilities" and many others. Her writings have appeared in a variety of other publications, including works published by the American Bar Association, Aspen Publishers, BNA, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc. and many others. For a listing of some of these publications and programs, see cynthiastamer.com. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. She also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. For instance, she presently is Chair of the American Bar Association (ABA) Health Law Section Managed Care & Insurance Interest Group, and Vice Chair of both the ABA Real Property, Probate & Trust Section Employee Benefits & Compensation Group and the ABA TIPS Worker's Compensation Committee, Continuing Education Liaison for the ABA Joint Committee on Employee Benefits, a member of the IRS TEGE Council, a former member of the BNA EBCD Editorial Advisory Board and frequent contributing author to various publications for BNA, Aspen, SHRM, World At Work, HRResource and numerous other publishers, and as faculty member and planning committee member for numerous human resources related programs. She also has previously served as Region IV Chair and a National Consultants Forum Board Member for the Society of Human Resources Management, Chair of the Dallas Bar Association Employee Benefits and Executive Compensation Section, and as a State Executive Board Member and Dallas Chapter Chair of the Texas Association of Business. For more details about Ms. Stamer's experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see CynthiaStamer.com or contact Ms. Stamer via telephone at 972.419.7188 or via e-mail at [email protected]

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Cynthia Stamer

Cynthia Marcotte Stamer, is nationally and internationally recognized for her work assisting businesses, governments, and other entities to develop creative strategies for dealing with employee benefit and related human resources, insurance, health care and finance concerns. Ms. Stamer helps businesses design, administer and defend cost-effective employee benefit other human resources programs, policies and procedures to meet their budgetary and other business objectives.